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What a Reasonable Person “Might,” “Could,” and “Would” Do

Posted by judicialethicsforum on Wednesday, March, 25, 2009

The Comment to Canon 2 of the Code of Conduct for United States Judges defines appearance of impropriety as follows: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, *would* conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” (Emphasis added).
Ironically, that is a lesser standard for disqualification than is required under the Federal Disqualification Statute, 28 U.S.C. § 455, and under the Due Process Clause of the Constitution. The following is adapted from Understanding Lawyers’ Ethics (3d ed. 2004).
Section 455 says: “Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality *might* reasonably be *questioned*.” In addition to the plain meaning of the statute, the legislative history shows that disqualification is required when there is “any reasonable factual basis for *doubting* the judge’s impartiality.”
Also, as a matter of constitutional due process, a judge is required to recuse himself if there is “a *possible* temptation to the average . . . judge . . . which *might* lead him not to hold the balance nice, clear, and true. . . .” or if the circumstances “*might* create an impression of *possible* bias.”
Nevertheless, there is a tendency for some judges and commentators — and particularly for advocates opposing disqualification — to slip away from the statutory language, turning “might” into “could” or “would.” The differences are important. The word “might” is used to express “tentative possibility;” “could” is used to express “possibility;” while “would” connotes what “will” happen or is “going to” happen. Accordingly, the word “would” requires significantly more than a tentative possibility of doubt regarding a judge’s impartiality, and use of the word “would” therefore produces a subtle but substantial change in the meaning of the statute.
For example, when Justice Stephen Breyer was nominated for the United States Supreme Court, I argued against his confirmation. The reason was that Breyer, when sitting in the First Circuit, had written an opinion that could well have had a devastating impact on Breyer’s own financial well-being. I maintained that Breyer had therefore acted unethically in failing to recuse himself. Then White House Counsel Lloyd Cutler contended that reasonable people differed about whether Breyer’s impartiality in the case was questionable, and that Breyer therefore was not required to recuse himself.
That argument would have had force if the statute required disqualification only when a reasonable person *would* question the judge’s impartiality. In that event, if reasonable people disagreed about whether the judge’s impartiality is questionable, one could not say that a reasonable person *would* question it — only that she might or might not — and recusal would not be required. Under the statute, however, if reasonable people do disagree, then clearly a reasonable person might question the judge’s impartiality, and recusal is required.

That is, under § 455(a) a federal judge, or justice, can properly stay in a case only if no reasonable person *might question* the judge’s impartiality.